CRIMINAL LAW PROFESSOR PAMELA S. KARLAN STANFORD LAW SCHOOL

Transcription

1 CRIMINAL LAW PROFESSOR PAMELA S. KARLAN STANFORD LAW SCHOOL CHAPTER 1: JURISDICTION AND ACTUS REUS Befre there can be a crime, tw things must be present: jurisdictin and actus reus. A. Jurisdictin The United States has the pwer t criminalize and t prsecute crimes that: Occur ; Occur n and ; r Are cmmitted by United States natinals abrad By cntrast, the states can nly punish crimes having sme t the state. Fr example: A crime that ccurs in whle r inside the state Cnduct utside the state that invlved an t cmmit a crime inside the state A t cmmit a crime if an vert act ccurred within the state Example 1: Dug lives in Delaware and is visiting Suth Carlina fr vacatin. In Suth Carlina, he meets Ken frm Kansas in a bar. Dug hires Ken t kill Dug s wife, Vicki. Ken ges t Delaware, kidnaps Vicki, and her bdy is later fund in Pennsylvania where she was killed. Can Ken be cnvicted f murder in Delaware?, because part f the crime ccurred in Delaware. Suppse Ken leaves the bar in Suth Carlina and rents a car t drive t Delaware. Can Ken be prsecuted fr cnspiracy t cmmit murder in Suth Carlina even if n crime ccurred there?, because it is a cnspiracy and ne f the vert acts renting a car ccurred in Suth Carlina. Can Ken be prsecuted in Kansas?, because nne f the events cnnected t the crime ccurred in Kansas.

2 B. Actus Reus N such thing as a crime. Wanting r hping t cmmit a crime is nt itself a crime. 1. There must be sme in the wrld Example 2: A thief shves a gun int the side f a victim and says, Yur mney r yur life. The shving f the gun is the actus reus. The act can be. Example 3: A thief walks up t a victim and says, Give me $100,000 r I will break yur mther s legs next week. The act f speaking is the actus reus. 2. Act must be (i.e., willed by the defendant) An invluntary act des nt satisfy the actus reus requirement. Example 4: Steve can t get t sleep because he s wrried abut the bar exam. His dctr recmmends that he take Ambien, a ppular sleep medicatin. One f Ambien s side effects is that users smetimes sleepwalk r eat while nt fully awake. One night after taking his Ambien, Steve arises frm his bed, sleepwalks int the cmmn area f the drmitry, reaches int the refrigeratr, and eats Celia s jar f caviar. Can Steve be charged with larceny?, his taking was nt a. He was under the influence f a prescriptin drug. Example 5: A husband is in bed ne night with his wife. In the middle f a dream, the husband rlls ver n tp f the wife and suffcates her t death. Is the husband guilty f hmicide?, the husband did nt vluntarily d anything because he was asleep. Vluntary des nt necessarily mean the persn wanted t d it. It means that he had mtr cntrl ver the act. Example 6: Tm ges int a stre in an attempt t rb the stre. He pints a pistl at Jerry and says, Tie up yur cwrkers r else I ll blw yur head ff. Jerry, in tying up his cwrkers, has cmmitted the actus reus necessary fr battery, but he almst certainly will have a defense f duress. 3. The failure t act can be sufficient actus reus Failure t cmply with a duty; such as the failure t file a tax return, failure t register fr selective service, etc Themis Bar Review, LLC MBE Criminal Law

3 Failure t act when there is a between the defendant and the victim; e.g., parents failure t btain medical attentin fr their children Vluntarily a duty f care that is cast aside Example 7: Anna and her friends are n the beach when they see yu drwning. Anna shuts, I ll save yu! She starts swimming ut t yu when she lks at her watch and realizes that Mad Men, her favrite TV shw, is starting sn. She turns arund and swims back t shre. If yu drwn, can Anna be held criminally liable?, because Anna started rescuing yu and abandned the rescue. The defendant causes a and fails t mitigate harm t the victim caused by the peril The defendant must be aware that he has made smething dangerus. Nt enugh t be aware that there is a danger Example 8: On the way int the bar exam, yu see a student spill his drink all ver himself. Yu ntice that he is abut t tuch a live wire. If yu d nthing and let the student get electrcuted, yu cannt be held criminally liable. Hwever, if it were yur wire and yu shuld have grunded it, yu culd be held criminally liable. Example 9: Nancy is a hme healthcare wrker wh cares fr an elderly wman named Mna. One evening, while Nancy s friend Dave is visiting Nancy at Mna s huse, Mna begins t chke n her dinner. Dave hears Mna chking. Rather than ding anything, he says t Nancy, wh is listening t her ipd, Hey, that ld lady is turning blue and gasping. What a ht! Nancy decides t wait until the end f a track t check n Mna. Mna chkes t death. Can Dave be charged with any crime related t Mna s death?, because Dave is just a bystander. Can Nancy? Yes, because Nancy was in a with Mna. MBE Criminal Law 2017 Themis Bar Review, LLC 3

4 CHAPTER 2: MENS REA, TRANSFERRED INTENT, AND MERGER Exam Tip 1: Mens rea is ne f the mst imprtant criminal law tpics tested n the MBE. A. Mens Rea The Cmmn Law States f Mind 1. Specific Intent The defendant nt nly cmmitted the actus reus, but did it fr the purpse f causing a particular result Example 10: Burglary is defined as the entering f a dwelling with the intent t cmmit a felny nce inside. Yu have a suspicin that yur neighbr might be a harder. One day, yu climb int yur neighbr's huse thrugh a windw t lk arund. Once inside, yu happen t see a newspaper frm the day that yu were brn. Yu take the newspaper and leave the huse. Have yu cmmitted burglary?, because yu didn't enter the huse with the t cmmit a felny. Althugh yu cmmitted a crime, yu did nt cmmit cmmn law burglary. Memrize the fur categries f crimes that are specific intent crimes under the cmmn law. Remember FIAT! 2. Malice 1) F : On the MBE, the questin will expressly state if a defendant is charged with first-degree murder 2) I crimes: CATS cnspiracy, attempt, and slicitatin 3) A with attempt t cmmit a battery 4) T ffenses: e.g., larceny, embezzlement, frgery, burglary, and rbbery Exam Tip 2: The main reasn t memrize the FIAT crimes is that there are sme defenses mst ntably vluntary intxicatin and unreasnable mistake f fact that are available nly fr specific-intent crimes. I AM certain there are nly tw malice crimes: and Malice exists when the defendant acts in reckless disregard f a high degree f harm. The defendant realizes the risk and acts anyway. Example 11: Arsn is the malicius burning f the dwelling f anther. Lynn is at Paul s huse fr a Furth f July ckut. Sme f the firewrks seem t be duds, s Lynn tsses them nt the gas grill. Sme explde and catch Paul s huse n fire. Lynn is charged with arsn. At trial, she argues that she didn t want t cause Paul's huse t burn dwn Themis Bar Review, LLC MBE Criminal Law

5 Can Lynn be cnvicted f arsn? Yes, because arsn is nt a specific-intent crime. It is enugh that Lynn was reckless and engaged in cnduct that had a high risk f harm. 3. General Intent categry The defendant intends t cmmit an act that is in fact unlawful. The defendant des nt need t knw the act is unlawful; it is sufficient t intend t perfrm the act that the law cndemns. Generally, acts dne knwingly, recklessly, r negligently under the Mdel Penal Cde (MPC) are general-intent crimes. Examples include: battery, rape, kidnapping, and false imprisnment. 4. Strict Liability Exam Tip 3: General intent crimes mst likely t be tested n the MBE include frms f hmicide ther than murder, such as manslaughter, and battery. There is n state f mind requirement; the defendant must merely have cmmitted the act 1) Statutry/Regulatry ffenses Example 12: A statute requires that fd items be labeled with the expiratin date. If a cmpany sells thse fd items withut an expiratin date, they ve cmmitted a crime under this statute. Even if the cmpany did nt intend t sell the fd withut an expiratin date r even if it was an hnest mistake, the cmpany is liable under strict liability. 2) Mrals ffenses Example 13: Humbert is attracted t yunger wmen. He knws the age f cnsent in his state is 16. He meets Llita in a bar, where patrns must shw ID t enter. Llita tells Humbert that she is 18 and she suggests they g back t her apartment t have sex. Humbert agrees and they have sex. Later, Humbert is charged with statutry rape, because Llita is under the age f cnsent. At trial, Humbert states that he checked her ID and really thught that Llita was 18. Suppse the judge believes Humbert, can he still be cnvicted f statutry rape?, s lng as Humbert meant t have sex with Llita, that is sufficient. Exam Tip 4: If an MBE questin cntains a statute, read it carefully fr mens rea language. Intent t = crime MBE Criminal Law 2017 Themis Bar Review, LLC 5

6 Knwingly r recklessly. = crime N mens rea language = Cnsider B. Mens Rea The Mdel Penal Cde States f Mind The MPC expresses mens rea as: purpse, knwledge, recklessness, and negligence. The MPC als recgnizes sme strict liability crimes. Hierarchy f mental states: 1) Purpse highest level f culpability 2) Knwledge 3) Recklessness 4) Negligence lwest level f culpability Lk fr the mens rea requirement in the statute thrugh wrds like knwingly r intent t If there is n mens rea language, assume the prsecutr must prve recklessness 1. Purpsely The defendant s cnscius bjective is t engage in the cnduct r t cause a certain result Example 14: Patricia raises her gun, pints it at Vic, screams die, yu twtiming n-gd piece f garbage, and fires, killing him. She has acted purpsely. 2. Knwingly r willfully Requires that the defendant be that his cnduct is f the nature required by the crime and that the is practically certain t ccur based n his cnduct Example 15: Patricia is angry at Vic but can t stand the sight f bld. S she decides t kill Vic by putting arsenic in his cffee Therms. She knws Vic shares his cffee with his c-wrker, Virgil, but she des nt care what happens t Virgil. Bth men drink the cffee and die. With respect t Vic, Patricia has acted purpsely, but with respect t Virgil, she has acted knwingly, since she didn t have the intent that Virgil die, althugh she knew that the result was practically certain t ccur. 3. Recklessly Requires the defendant t act with a cnscius disregard f a substantial and unjustifiable that cnstitutes a grss deviatin frm the standard f cnduct f a lawabiding persn. Example 16: Patricia is a Glden State Warrirs fan wh lives in dwntwn Oakland. When the Warrirs win their 73d regular seasn game, she s s Themis Bar Review, LLC MBE Criminal Law

7 4. Negligently excited that she takes her semi-autmatic gun ut f the huse and fires several dzen runds int the air. Several f the runds hit Vic. She didn t want t hit him, and she actually didn t knw he was standing nearby, but she acted recklessly. The defendant aware f a substantial and unjustifiable risk and acts in a way that grssly deviates frm the standard f care f a reasnable persn in the same situatin. C. Transferred Intent Dctrine When a defendant has the requisite mens rea fr cmmitting a crime directed against Victim A, but actually cmmits the crime against Victim B, the law the intent frm Victim A t Victim B D. Vicarius liability Example 17: Ralph is a prfessinal jewel thief. He is hired t steal a valuable diamnd pin frm Mrs. Rich at a charity ball. In preparatin, Ralph studies her picture frm ld newspapers. Hwever, Mrs. Rich has had a lt f wrk dne n her face since the picture. At the ball, Ralph appraches Miss Faux, wh resembles the picture he studied, believing her t be Mrs. Rich, and steals jewelry frm her instead. Can Ralph be charged with larceny a specific-intent crime against Miss Faux?, he intended t cmmit larceny; it transfers t Miss Faux. Can he be charged with attempted larceny against Mrs. Rich?, because he attempted t cmmit larceny against her, even if it was Miss Faux. Nte 1: Transferred intent des nt apply t attempted crimes, nly t cmpleted crimes. Hlds a persn r entity liable fr an actus reus cmmitted by smene else A crpratin can be liable fr the actins f its high-level emplyees r the Bard f Directrs. The MPC requires a specific impsed by law n the crpratin, r that high-level fficials have r tlerated the act. Bth the individual wh has the actus reus and mens rea and the crpratin fr which he wrks can be held liable. MBE Criminal Law 2017 Themis Bar Review, LLC 7

8 E. Merger A defendant can be cnvicted f mre than ne crime arising ut f the same act. Hwever, a defendant cannt be cnvicted f tw crimes when the tw crimes merge int ne. In that case, the defendant can nly be cnvicted f ne f the crimes. Tw categries f merger: 1) ffenses; and 2) The merger f an and a cmpleted ffense 1. Lesser-included ffenses: Lesser-included ffense: An ffense in which each f its elements appears in anther ffense, but the ther ffense has smething additinal Greater-included ffense: An ffense which includes all elements f the lesser-included ffense but requires smething additinal Think f each element f the ffense as a different gemetric figure: If the elements f Offense # 1 are a circle and a square, And the elements f Offense # 2 are circle, square, and triangle, then Offense #1 is the ffense f Offense #2; Offense #2 is the greater-included ffense f Offense #1. Remember: A defendant cannt be cnvicted f bth Offense #1 and Offense #2. Example 18: Ralph tries t steal Miss Faux s pin by gently prying it free frm her jacket. But she ntices Ralph and resists. Ralph then pushes her ver and runs ff with the jacket. His cnduct wuld satisfy the elements fr bth larceny and rbbery, but since: Rbbery = + f frce Larceny is a lesser-included ffense f rbbery. Rbbery is a greater-included ffense f larceny. Ralph can be cnvicted f rbbery but nt f larceny, because larceny int the rbbery. Nte 2: If there are tw separate victims, the crimes against each victim d nt merge tgether. 2. Inchate and Cmpleted Offenses Attempt: A defendant wh actually a crime cannt als be cnvicted f that crime. If yu try t cmmit the crime against Persn #1 and actually cmmit it against Persn #2, yu can be cnvicted f bth the attempt against Persn #1 and the cmpleted crime against Persn #2. Slicitatin: int the cmpleted ffense Themis Bar Review, LLC MBE Criminal Law

9 If the defendant slicits anther persn t cmmit a murder and the ther persn ges ahead and cmmits the murder, the defendant is liable fr the murder, but nt fr slicitatin as well. Cnspiracy and substantive ffenses d nt merge! A defendant can be cnvicted f bth t cmmit a crime and cmmitting the crime itself. CHAPTER 3: PRINCIPALS, ACCOMPLICES, AIDERS, AND ABETTORS A. Children At cmmn law, children under the age f were never capable f cmmitting a crime Children ages were rebuttably presumed t be incapable f cmmitting crimes Children at least years ld culd be charged as adults. B. Principals Exam Tip 5: On the MBE, children are mre likely t be the victims f crime rather than the perpetratrs. Defendants whse r frm the actus reus f the crime Can be mre than ne principal t a particular crime Ask: Wh cmmitted the actus reus that gives rise t the ffense? C. Accmplices Thery fr hlding peple ther than the principal respnsible fr the crime cmmitted by the principal Peple wh the principal either befre r during the cmmissin f a crime can be liable as accmplices Must act with the f assisting the principal t cmmit the crime; bystanders, even apprving nes, are nt accmplices. Example 19: Yu g t a bar after the exam and a bar fight breaks ut. If yu applaud during the fight, yu are nt liable fr assault as an accmplice. Liable as an accmplice fr bth the crime and any ther crimes that ccur in the curse f the criminal act Example 20: Irving decides t rb a bank. He asks Oscar t drive a getaway car. Irving des nt have a gun. Irving then ges t Paul s huse and asks t brrw Paul s revlver, telling him he wants t g target shting. Paul lends MBE Criminal Law 2017 Themis Bar Review, LLC 9

10 him the gun. During the bank rbbery, Irving shts a teller. Oscar takes his share f mney frm the rbbery and buys herin t sell. Fr which crimes can they be cnvicted? Irving: Oscar: Paul: Editr's Nte 1: Irving and Oscar might als be held liable fr cnspiracy, discussed belw. An accmplice can be even if he r she cannt be a principal r even if the principal cannt be cnvicted Editr's Nte 2: The mdern majrity rule is that an accmplice may be cnvicted f a crime even if the principal is nt tried, is nt cnvicted, has been given immunity frm prsecutin, r is acquitted. Hwever, at cmmn law, the accmplice culd be cnvicted f a crime nly if the principal was als previusly cnvicted f the crime. Only a small minrity f jurisdictins still subscribes t this apprach. Example 21: A statute makes it a crime fr a public fficial t take bribes. Mayr Benedict wants t take a bribe, but wants t d it where n ne will see. His friend, Claudi, wns a cabin in the wds. Mayr Benedict asks Claudi if he culd use his cabin as the lcatin t exchange bribery mney. Claudi agrees and ffers t chain ff the rad. Claudi culd be guilty f aiding and abetting the bribery as an accmplice. But, he culd nt be guilty as a principal because he is nt a public fficial. Example 22: Yu assist a 7-year-ld child t cmmit murder. Yur little nephew tells yu that he really wants t kill his classmate Bbby. Yu give yur nephew a gun t cmmit it. Yur nephew cannt be cnvicted f murder because he is under the age f 7, but yu can be cnvicted f aiding and abetting as an accmplice. Editr's Nte 3: The prfessr misspke regarding the facts in the abve example. In this scenari, yu gave yur nephew a gun s that he culd cmmit the crime. Yur nephew cannt be a principal because he is t yung. Hwever, yu can be cnvicted f murder as an accmplice. Example 23: If yu help a diplmat cmmit a crime, the diplmat has diplmatic immunity s the diplmat might nt be held liable as a principal, but yu can still be held liable as an accmplice. Exceptin: A persn prtected by a cannt be cnvicted as an accmplice in vilating the statute Themis Bar Review, LLC MBE Criminal Law

11 Example 24: If a statute prhibits sex with an underage persn, the underage persn is nt an accmplice t that crime. D. Accessries After the Fact Peple wh assist the defendant the crime has been cmmitted, e.g., bstructin f justice r harbring a fugitive Example 25: After the bank rbbery, Irving asks his accuntant fr help with laundering the mney frm the rbbery. If the accuntant helps Irving, he is nt guilty f aiding and abetting the bank rbbery, but instead wuld be guilty f a separate crime as an accessry after the fact (e.g., a financial crime). E. Aiders / Abettrs and Cnspiracy In additin t accmplice liability fr the substantive crime, individuals wh aid r abet a defendant t cmmit a crime may als be guilty f the separate crime f if there was an agreement t cmmit the crime and an vert act was taken in furtherance f that agreement. Example 26: Recall Example 20, abve. Oscar and Irving might als be guilty f cnspiracy t cmmit rbbery in additin t the substantive crime f rbbery. F. Mental States f Accmplices Majrity and MPC Appraches the accmplice must act with the purpse f prmting r facilitating the cmmissin f the ffense; the accmplice must that her acts will assist r encurage the criminal cnduct. Minrity Apprach the accmplice is liable if he intentinally r knwingly aids r causes anther persn t cmmit an ffense. Any vluntary act that actually assists r encurages the principal in a knwn criminal aim is sufficient fr accmplice liability Criminal Facilitatin under the majrity rule, a persn wh is nt guilty f the substantive crime (because he did nt act with intent) may nevertheless be guilty f the lesser ffense f criminal facilitatin fr simply assisting CHAPTER 4: NEGATING MENS REA Three categries: Mistake, insanity, and intxicatin A. Mistake A defendant claims that sme mistake regarding either facts in the wrld r the state f the law negates his and thus he cannt be cnvicted f a crime fr which there is bth actus reus and mens rea elements. MBE Criminal Law 2017 Themis Bar Review, LLC 11

12 1. Mistakes f Law Mistakes abut what the law frbids r permits f the law is n excuse. Example 27: The fact that yu didn t realize the speed limit was 65 because yu thught it was 80 is a mistake f law and is generally nt a defense. Three ptential exceptins: 1) Reliance n high-level gvernment Relying n yur wn lawyer s advice des nt generally fall int this exceptin Example 28: If a regulatin states that smething is permitted and yu are later prsecuted fr that cnduct because the regulatin was wrng, the regulatin might negate the mens rea element. 2) Lack f ntice 3) Mistake f law that ges t an element f intent (applies nly t the FIAT crimes r specific-intent crimes) Fr specific-intent crimes, a defendant can argue that his belief that his cnduct was legal that element f the ffense. Example 29: Quentin, a sl practitiner, practices law ut f his rented apartment. He drills hles in the wall f his apartment fr bkshelves. The landlrd tells Quentin t stp drilling and grabs Quentin s drill. Quentin pushes the landlrd, causing him t fall and injure his shulder. Quentin is charged with battery and with the statutry crime f knwingly damaging the prperty f anther persn, [with the intent t deprive that persn f the prperty]. Quentin argues that he thught a tenant was allwed t alter the walls f his apartment as lng he had the lease. He argues that he was defending his wn prperty when he pushed the landlrd. Quentin had the mistaken belief that he was prtecting his wn prperty. Is that a defense t a charge f battery?, because battery is nt a specific-intent crime. He vluntarily applied frce t anther persn and was nt entitled t d s. Can Quentin s mistake abut the prperty be a defense t vilating the statute?, Quentin did nt knwingly deprive a persn f the prperty because he believed he culd alter the walls. 2. Mistakes f Fact Key starting pint: Whether the crime is a strict liability crime, a crime, r a crime Themis Bar Review, LLC MBE Criminal Law

13 a. Strict Liability: Mistake f fact is a defense. Must be a vluntary act, but the defendant s state f mind is irrelevant b. General Intent: Mistake f fact is a defense nly if the mistake is and it ges t the criminal intent. Remember the transferred intent dctrine: Killing William when a defendant meant t kill Edward is nt a mistake f fact c. Specific intent: Mistakes f fact are a defense whether the mistake was reasnable r unreasnable. The nly questin is whether the defendant held the mistaken belief. d. Applicatin Example 30: Rger is ut f twn n a business trip and he is very tired. It is dark when Rger rents a car at the airprt. He ges t a restaurant, barely nticing what kind f rental car he is driving. After dinner, he gives his ticket t the valet t retrieve his rental car. The valet brings Rger a different car frm the ne he actually rented. Rger absentmindedly gets int the Prsche and drives ff. Rger is charged with larceny (which requires taking away the prperty f anther persn with the intent t permanently deprive the ther persn f the prperty; a specific-intent crime) and with jyriding (which requires taking the autmbile f anther persn fr a shrt perid f time). Can Rger be cnvicted f larceny if the jury cncludes that n reasnable persn wuld cnfuse an ecnmy car with a Prsche?. Larceny is a specific-intent crime and specific-intent crimes nly require a mistaken belief. He thught he was in his car. Can Rger be cnvicted f jyriding, even if the jury believes that he thught the car was his?, because the jury cncluded that the mistake was unreasnable. B. Insanity Fur different tests: 1) M Naghten: Defendant either did nt knw the f the act r did nt knw that the act was wrng Example 31: A defendant did nt realize that he was shting at a human being; he thught he was shting at a pumpkin. 2) Irresistible Impulse: Defendant has a r defect that means the defendant cannt cntrl herself MBE Criminal Law 2017 Themis Bar Review, LLC 13

14 3) Durham Rule: Defendant wuld nt have cmmitted the crime his having a mental disease r defect (rarely used because s defendant-friendly) 4) Mdel Penal Cde: Due t a mental disease r defect, the defendant did nt have t appreciate the wrngfulness f her acts r t her cnduct t the law Nte 3: All fur tests require that the defendant have a mental disease r defect. Being a psychpath is nt enugh t cnstitute insanity. In the majrity f jurisdictins, the has the burden f prving insanity either by a prepnderance f the evidence r by clear and cnvincing evidence. Sme jurisdictins require the defendant t vercme the presumptin f sanity by intrducing evidence f insanity, and then the burden f persuasin shifts t the prsecutin t prve sanity beynd a reasnable dubt. C. Intxicatin Cvers alchl, drugs, and medicatins Can be r invluntary 1. Invluntary intxicatin Occurs when a persn: Desn t realize that she received an intxicating substance (e.g., date rape drugs); Is int ingesting a substance; r Has an r unanticipated reactin t a prescriptin medicatin. Can be a valid t general intent, specific intent, and malice crimes when it negates the mens rea necessary fr thse crimes. 2. Vluntary intxicatin Occurs when a persn ingests the substance, knwing that it was an intxicant Vluntary intxicatin is a defense nly t -intent crimes (FIAT crimes), and nly if it prevented the defendant frm frming the mens rea Nt a valid defense if the defendant gt drunk in rder t cmmit the crime Example 32: Terry is a member f a gang. As an initiatin rite, she must break int her byfriend s huse and steal ne f his mther s shes. Terry is timid and nervus, s she drinks six shts f burbn t get her curage up. She s nw quite drunk. She then climbs thrugh an pen windw and begins rummaging arund in the mther s clset. She gets ne f the mther s pumps and leaves the huse. While weaving dwn the driveway, the mther cmes Themis Bar Review, LLC MBE Criminal Law

15 hme and cnfrnts Terry. Terry tries t hit the mther ver the head with the she. But Terry s hand-eye crdinatin is nt s gd, s she misses. Terry then jumps int her car and drives ff. Unfrtunately, she runs ver Ursula and kills her. Suppse Terry is charged with burglary, assault, and vehicular hmicide. Starting pint: She gt drunk in rder t cmmit the crime. If she d simply gtten drunk with friends and then burglarized a huse, she culd nt be cnvicted f burglary because it is a specific-intent ffense. But because she drank in rder t cmmit the burglary, she be cnvicted, even f the specific-intent crime f burglary. Assault (with attempt t cmmit battery) is a specific-intent crime, but it s nt the crime she gt drunk in rder t cmmit, s if she didn t have the, she can t be cnvicted f assault. Vehicular hmicide: It is nt a specific-intent crime, s she s guilty even thugh she had n desire t run ver Ursula. Under the MPC, vluntary intxicatin is nly a defense t crimes fr which a material element requires purpse r knwledge and the intxicatin prevents the frmatin f that mental state. CHAPTER 5: INCHOATE CRIMES Nte 4: Remember CATS: Cnspiracy, Attempt, Slicitatin A. Cnspiracy 1. Definitins and Elements a. Cmmn law cnspiracy requires: An Between tw r mre peple T cmmit an act b. Mdern cnspiracy statutes Add a furth requirement: the requirement c. Mdel Penal Cde (MPC) Only the defendant wh actually has been charged must actually t cmmit the unlawful act. The ther peple with whm the defendant agrees can be undercver agents, fr example. Agreement can be MBE Criminal Law 2017 Themis Bar Review, LLC 15

16 Simply a crime is ging t ccur and ding nthing abut it des nt turn a bystander int a c-cnspiratr; there must be an agreement. Example 33: Anna lives in a cmmn law jurisdictin. She agrees with Bb t rb a bank, but she desn t knw that Bb is an undercver plice fficer. Anna als wants t steal an emerald frm a jewelry stre in a nearby state, which is an MPC jurisdictin. She asks Ranier fr help with stealing the gem frm the jewelry stre. She desn t knw that Ranier is als an undercver fficer. Is Anna guilty f cnspiracy t cmmit bank rbbery?, because there wasn't an actual agreement between 2 peple t cmmit a crime. Anna was the nly persn agreeing t cmmit a crime. Is Anna guilty f cnspiracy t cmmit larceny?, because nly Anna needs t agree t cmmit a crime in an MPC jurisdictin. Purpse f the cnspiracy: Unlawful act If what the cnspiratrs agree t d is nt a crime, there is n cnspiracy even if they think what they re ding is wrng. Example 34: Harry and Sally hear that gray-bellied sapsuckers are extic birds n the endangered species list and knw that smene will pay $10,000 fr ne f these birds. They knw that stealing eggs frm endangered species' nests is a crime. Harry and Sally agree t g t the nest f the gray-bellied sapsucker and steal the eggs t sell them. But it turns ut that gray-bellied sapsuckers aren t endangered, s it s nt actually a crime t catch ne. S they are NOT guilty f cnspiracy, because what they cnspired t d was nt a crime even thugh they thught it was. Overt act: Can be lawful r unlawful, as lng as it the cnspiracy Example 35: Zacarias Mussaui and ther 9/11 hijackers jined a health club tgether in Gergia. They did it t build strength s they culd verpwer the pilts and crew during the hijackings. This is an vert act because it furthered the cnspiracy. 2. Scpe f a Cnspiracy At cmmn law, each c-cnspiratr can be cnvicted bth f: 1) Cnspiracy; and 2) All substantive crimes cmmitted by any ther cnspiratr acting in f the cnspiracy Themis Bar Review, LLC MBE Criminal Law

17 Example 36: Gldie, Frank, and Myrtle all agree t steal gds frm a sprting gds stre in the mall. Gldie will enter the stre t steal the gds, Frank is the lkut, and Myrtle is driving the getaway car. Gldie tells Frank t blw a whistle if a security guard cmes by. After Gldie enters the stre, Frank panics when he sees a guard and shves the guard, wh falls and breaks his arm. Gldie cmes ut f the stre with the gds, which includes a starter pistl. Myrtle later uses the starter pistl t rb a cnvenience stre. Wh is liable fr what? Cnspiracy t rb the stre: Battery f the guard: Rbbery f the cnvenience stre: Relatinships f c-cnspiratrs Chain Cnspiracy: C-cnspiratrs are engaged in an enterprise cnsisting f many steps; each participant is liable fr the substantive crimes f his c-cnspiratrs Example 37: A cnspiracy t distribute drugs invlves many peple in a causal chain (manufacturer distributer dealer). The cnspiratrs need nt knw each ther, but they have all agreed t participate in the same cnspiracy and each can be held liable (1) fr the cnspiracy and (2) fr the substantive ffenses cmmitted alng the way. Spke-Hub Cnspiracy: Invlves many peple dealing with a central hub; participants are nt liable fr the substantive crimes f their c-cnspiratrs because each spke is treated as a separate agreement rather than ne larger general agreement Example 38: A bank emplyee agrees t prcess fraudulent lan applicatins. This emplyee wuld serve as the hub. Each individual seeking a fraudulent lan is a spke. But the spkes are nt respnsible fr the actins f the ther spkes. Example 39: If many thieves use the same fence t sell stlen gds, each rbber is respnsible fr the gds and fr cnspiracy t sell stlen prperty, but nt fr the gds frm ther rbbers. 3. Withdrawal frm a Cnspiracy At cmmn law, it s t withdraw frm a cnspiracy, because the crime is cmpleted the mment the agreement is made. MBE Criminal Law 2017 Themis Bar Review, LLC 17

18 Example 40: Yu and Prfessr Kramer agree t cmmit a crime. The next day, she calls and says she n lnger wants t participate in the crime. Prfessr Kramer can still be cnvicted f cnspiracy because yu bth agreed t cmmit the crime. But she will nt be cnvicted f the actual crime yu bth had planned t cmmit because she has withdrawn. Under the federal and MPC rules, a cnspiratr can withdraw prir t the cmmissin f any by cmmunicating her intentin t withdraw t all ther cnspiratrs r by infrming. A cnspiratr wh helps t the success f a cnspiracy can raise a withdrawal defense even after an vert act has ccurred. Example 41: In an MPC jurisdictin, if Prfessr Kramer withdraws frm the cnspiracy successfully either by ntifying yu r law enfrcement she may nt be held liable fr cnspiracy if the ntificatin was timely enugh t thwart the success f the cnspiracy. Even if a defendant cannt withdraw frm the cnspiracy (e.g., because the ntificatin was nt timely), that defendant can limit his liability fr substantive crimes cmmitted after the cnspiracy is frmed by infrming the ther cnspiratrs r timely advising legal authrities. B. Attempt Attempt is a crime 1. Requirements 1) Specific intent t cmmit a particular criminal act; and 2) A step twards perpetrating the crime Mves yu dwn the rad twards actually cmmitting the crime Example 42: Waking up and getting dressed n the mrning that yu plan t embezzle funds frm yur emplyer des nt cnstitute a substantial step. Example 43: Bringing special equipment t the scene f the crime r lying in wait will typically cnstitute substantial steps. Attempt is a specific-intent crime always even when the cmpleted ffense is nly a -intent crime 2. Defenses Example 44: Attempted murder is specific-intent crime, but murder is a general-intent crime. Defenses fr specific-intent crimes can be used as a defense t attempt Themis Bar Review, LLC MBE Criminal Law

19 Example 45: Aarn is standing n an verpass. Fr a jke, he thrws bwling balls nt the highway belw. If a bwling ball hits and kills smene, Aarn will be guilty f murder (because he acted with a maligned and depraved heart). But if the ball desn t hit anyne, Aarn cannt be charged with attempted murder because he lacked the specific intent required t cmmit murder (i.e., he didn t intend t kill). Certain defenses like vluntary intxicatin and unreasnable mistake f are available even if they wuldn t be available had the crime been cmpleted. 3. Merger Attempt merges int a ffense. Yu be cnvicted f bth attempted murder and murder f the same persn in the same episde. Yu can be cnvicted f bth t cmmit murder and murder. C. Slicitatin Occurs when an individual invites, requests, r cmmands anther persn t cmmit a crime If the persn agrees, we have a instead. If the persn cmmits the ffense, the slicitatin charge will int the cmpleted ffense. Example 46: Amy ffers t pay Dug $1,000 t cmmit a murder. This is a slicitatin. If Dug says yes, this is a cnspiracy t cmmit murder. If Dug actually cmmits the murder Amy will be guilty f the murder and cnspiracy, but nt slicitatin. Nte 5: It is an ffense simply t ask smene else t cmmit a crime. Example 47: Wallace ges int a bar and ffers a guy $10,000 t kill her bss. That is slicitatin. If the guy agrees, that is cnspiracy t cmmit murder. If the guy actually kills the bss, Wallace is guilty f bth cnspiracy and murder. Nte 6: The slicitatin charge merges int the cmpleted ffense, but the cnspiracy charge des nt. CHAPTER 6: HOMICIDE A. In General 1. Definitin Hmicide: The f a living human being by anther human being Animals can t cmmit a hmicide and killing an animal is nt a hmicide MBE Criminal Law 2017 Themis Bar Review, LLC 19

20 2. Causatin Victim cannt already be dead Suicide is nt hmicide, but assisting smene t cmmit suicide can be a hmicide. There must be between the defendant s actins and what happened t the victim Actual Causatin: Victim wuld nt have died " " what the defendant did Prximate Causatin: Defendant s act is a cause f the victim s death (death is the natural and prbable result f the cnduct) Example 48: If a defendant shts the victim and the victim dies in the hspital because the dctr was negligent, that death is a freseeable cnsequence f shting smene. Independent actins by a third persn are generally nt a freseeable cause Example 49: Bernie, the defendant, cmmits securities fraud. One f his victims wh was defrauded f mney cmmits suicide. Bernie is nt the prximate cause f the victim s death, even thugh he may be viewed as the actual cause. Exam Tip 6: There are three cmmn types f hmicides n the bar firstdegree murder, cmmn-law murder, and manslaughter. 3. Cnsent is Nt a Defense t Any Type f Hmicide Assisted suicide is a hmicide by the assister. B. First-Degree Murder Specific-intent crime Exam Tip 7: The questin will generally tell yu if the case invlves first-degree murder. Otherwise, assume the questin invlves cmmn law. A questin invlving first-degree murder is ften testing the special defenses fr specificintent crimes (FIAT crimes) Editr's Nte 4: First-degree murder. A statutry creatin, generally defined as a deliberate and premeditated murder, r a killing that results during the cmmissin f an inherently dangerus felny (i.e., felny murder is frequently classified as first-degree murder). When given a first-degree murder statute, a murder that falls just shrt f satisfying thse elements is generally secnd-degree murder Themis Bar Review, LLC MBE Criminal Law

21 C. Cmmn-Law Murder 1. Definitin The killing f anther human being cmmitted with afrethught Lawful killing f anther is nt murder (e.g., state executin r plice fficer s justifiable use f deadly frce is nt murder) 2. Fur Kinds f Malice a. : The defendant acted with the desire that the victim end up dead. The intent need nt be premeditated. It can be frmed in the mment befre the killing. b. Intent t inflict : The defendant intended t hurt the victim badly, and the victim died. c. r : The defendant acted with a cavalier disregard fr human life and a death resulted. The defendant must realize that his cnduct is really risky but need nt have any intent regarding the utcme f his actins. Example 50: Russian rulette d. : The death ccurred during the cmmissin r attempted cmmissin f a felny The BARRK felnies burglary, arsn, rbbery, rape, and Deaths caused by ther felnies get the label f misdemeanr manslaughter. Felny murder can invlve: a) Smene wh the felny Example 51: The defendant attempts t rb the victim and the victim resists. The defendant punches the victim and the victim dies. b) When a bystander is killed during a felny Example 52: Yu rb a bank and the guard gives chase. Yu fire yur gun at the guard but instead hit a pedestrian n the street. c) Third persn killed by the resister r plice fficers (minrity) Example 53: Yu rb a bank. After rbbing the bank, yu get int a shtut with the plice. If a plice fficer misses yu and shts a bystander, yu are liable in a minrity f jurisdictins. MBE Criminal Law 2017 Themis Bar Review, LLC 21

22 Majrity agency thery: A defendant is nly respnsible fr the crimes f the defendant s agents. Because the victim, plice, r third party are nt the defendant s agents, the defendant is nt respnsible fr their cnduct. D. Manslaughter 1. Definitin d) If a c-feln is killed by a resister r a plice fficer, then the defendant is nt guilty f felny murder. Example 54: If the defendant is riding with the getaway driver and the plice shts and kills the getaway driver, the defendant is nt liable fr felny murder. Exam Tip 8: If a questin just says murder, assume that it s cmmn law murder, a malice crime. Recall that in malice crimes, an unreasnable mistake f and vluntary intxicatin are NOT available defenses. All killings f anther human being that are nt first-degree murder r cmmn-law murder Tw types: and 2. Vluntary Manslaughter Occurs when a defendant intends t kill the victim, but his state f mind is less blamewrthy than murder Acted in the " " r under extreme emtinal disturbance Test t determine if it s murder r manslaughter: Is the situatin ne in which mst peple wuld act withut and withut time t? Example 55: Rufus cmes hme and finds his wife, Amy, in bed with Luke. Rufus shts Luke and Amy. This is acting in the heat f passin r heat f the mment. Peple are nt expected t stp, think ratinally, and calm dwn in this situatin. Nte 7: Hearing abut yur spuse s affair is nt sufficient. Example 56: Frank was sexually abused as a yung teenager. Five years later, he testifies at the highly-publicized trial f his abuser and was frced t describe the abuse he had suffered. Several days later, a grup f yung teenagers surrunded Frank and began taunting him, suggesting that he had asked fr it. Frank lashes ut at the grup and strangles ne f them. Wuld Frank be entitled t a manslaughter instructin? Prbably nt under the heat f passin defense, but maybe under the emtinal disturbance. We need Themis Bar Review, LLC MBE Criminal Law

23 mre facts t determine whether it was reasnable t strangle smebdy fr a taunt. 3. Invluntary Manslaughter A criminally killing r killing f smene while cmmitting a crime ther than thse cvered by felny murder Misdemeanr manslaughter: The defendant is engaged in a crime that des nt rise t the BARRK level f felny, and as a result f that crime, smene dies A defendant wh engages in criminally negligent cnduct and causes a death is guilty f invluntary manslaughter (e.g., traffic deaths). Example 57: A wman ges jgging with her dgs. A city law makes it a misdemeanr t let a dg ff its leash n public prperty. But the wman ignres the law. While unleashed, ne f the wman s dgs attacks and kills a small child. In this situatin, the wman may be guilty f invluntary manslaughter, because letting her dg ff its leash was the but-fr cause f the child s death. CHAPTER 7: PROPERTY CRIMES A. Larceny 1. Definitin Larceny requires: Taking Anther persn s prperty Withut his cnsent (trespassry) and With the t deprive him f it permanently. 2. Elements Prperty tangible persnal prperty (e.g., wristwatch, gds sld in a stre) Nt intangible prperty (e.g., cpyright) r real prperty, r services Nte 8: There are mdern theft f services statutes that criminalize btaining a service, e.g., a massage, and then nt paying fr it. That cnduct des nt fall under cmmn law larceny. Taking Invlves any f prperty, hwever slight Example 58: Hank ges int an electrnics stre t shplift an MP3 player. He lifts the player ff f the cunter and heads fr the dr. Even befre he leaves the stre, he has satisfied the taking element f larceny. Trespassry taking (withut cnsent) MBE Criminal Law 2017 Themis Bar Review, LLC 23

24 Cnsent must be real, nt btained by r Editr's Nte 5: Lack f cnsent is nt an element f larceny. The prsecutr must merely shw that the taking was wrngful. The defendant can assert cnsent as an affirmative defense. Intent An intent t deprive the persn f the prperty permanently Brrwing prperty, even withut the wner s cnsent, is nt larceny as lng as yu intend t. If the prperty is destryed in yur care, yu have nt cmmitted larceny (e.g., jyriding). Example 59: A teenager sees a fancy car with the keys in it. The teen jumps in, thinking he will just drive the car arund the blck a few times and then return it. But he crashes the car. Is he guilty f larceny?, because the teenager intended t give the car back. (Nte: he des nt get ff sct free because there are ther crimes, like jyriding, fr which he can be cnvicted.) Example 60: One day befre class, yu realize that yu frgt yur textbk. In the law schl library, yu see smene else s textbk lying n a desk. Yu brrw the bk with the intentin f returning it after class. During yur class, there is a fire alarm and yu leave the bk behind. The sprinklers malfunctin and start spraying water inside the classrm, ruining the brrwed textbk. Are yu guilty f larceny?, because yu didn't intend t deprive the wner f the textbk permanently. Larceny is a crime. As lng as the defendant thinks it s his prperty hwever unreasnably he is nt guilty f larceny. Example 61: Yu take the wrng black umbrella frm an umbrella stand in a restaurant. Even if yu intend t keep that umbrella frever, yu are nt guilty f larceny because yu were mistaken (this is true even if the mistake was unreasnable). 3. Embezzlement: A Variatin f Larceny The defendant starts ut having the victim s cnsent t have the prperty but cmmits embezzlement by the prperty t his wn use. Example 62: Jake is a teller at King Savings Bank. One day Lu, a depsitr at the bank, cmes t the windw and hands Jake a check, made ut t Zach and endrsed ver t Lu, fr depsit t Lu s accunt. Jake knws that Lu is an enfrcer fr an rganized crime family, and strngly suspects that Lu btained Zach s check thrugh frce. Believing the check t be ill-gtten gains, Jake Themis Bar Review, LLC MBE Criminal Law

25 instead depsits the check t the accunt f the Make a Wish Fundatin, a lcal charity. Is Jake guilty f larceny because he stle Lu s check?, he had permissin. Is Jake nt guilty f embezzlement because the mney was nt rightfully Lu s in the first place?. Is Jake nt guilty f embezzlement because he didn t keep the mney fr himself?, he cnverted prperty he legally btained fr his wn purpse. 4. False Pretenses: Anther Variatin f Larceny The defendant btains title t smene else s prperty thrugh an act f. Example 63: Paying fr gds with cunterfeit mney r a bad check 5. Mdel Penal Cde and ther Mdern Changes Under the MPC and in many jurisdictins, crimes such as larceny, false pretenses, and embezzlement are treated as a single statutry crime f theft (which includes bth tangible and intangible prperty). Exam Tip 9: Be sure t nte whether a questin wants yu t use the MPC definitin (i.e., all the theft crimes are treated equivalently) r the cmmn-law definitins (in which case, yu must wrk yur way thrugh the elements). B. Rbbery 1. Definitin and Elements Cmmn-law rbbery is a simple equatin: Rbbery = + Rbbery requires: 1) Taking; 2) Anther persn s prperty; 3) Withut his cnsent; 4) With intent t deprive him f it permanently; 5) The taking ccurs frm the victim s persn r in his ; and 6) Either by vilence r putting the victim in fear f physical harm MBE Criminal Law 2017 Themis Bar Review, LLC 25

26 2. Extrtin: A Variatin f Rbbery Invlves threats f harm (including nn-physical harm), rather than threats f imminent physical harm Example 64: Xenia appraches Chris at a party and admires her necklace. Xenia tells Chris, Give me yur necklace r else I ll tell yur husband that I saw yu cming ut f a htel rm last weekend with Ben. Chris turns t walk away and Xenia grabs the necklace, pulling it ff Chris s neck. Of which crimes are Xenia guilty? Rbbery: Yes, because btained by Extrtin:, because threat did nt d anything Attempted extrtin:, threatened t cmmit larceny, but failed C. Burglary 1. Definitins Cmmn-law burglary requires: Breaking and Entering The Of anther At night With the specific intent t cmmit a nce inside The cmmn-law elements have been relaxed, s that burglary can nw ccur in cmmercial prperties r during the day; i.e., mdern law burglary requires: Breaking and Entering The prperty Of anther With the specific intent t cmmit a felny inside 2. Elements: Breaking can invlve pushing pen r smashing a dr r windw, r btaining entry by Smene wh cmes inside anther's dwelling with the wner s and then steals smething is guilty f larceny (and pssibly rbbery is he used vilence r threat f vilence) but nt burglary because there was n breaking. Entering invlves breaking the plane f the dwelling Themis Bar Review, LLC MBE Criminal Law

27 Example 65: Sticking yur hand thrugh a windw cnstitutes entering. A dwelling at cmmn law is a structure regularly lived in, nt a cmmercial building. Of anther: Cannt burglarize yurself With the t cmmit a felny nce inside. The usual felny is larceny, but it culd be anther felny, such as battery. Example 66: Breaking int anther s huse due t curisity is nt burglary because there is n specific intent t cmmit a felny nce inside. Example 67: Nick has several friends staying at his beach huse. One afternn, he ntices that Mary has an expensive diamnd watch. She takes it ff when she ges t the beach. That evening, while everyne is dwn at the beach fr the sunset, he sneaks back t the huse, pries pen the kitchen windw, enters Mary s bedrm, frces pen her jewelry bx, and steals the watch. Meanwhile, Quinn, Nick s neighbr, ntices the half-pen windw. He s always wanted t see the inside f Nick s huse, but Nick has been very standffish abut inviting him in. Quinn raises the windw slightly higher t squeeze int the huse. While raming abut the huse, he ntices Wayne s wallet n the nightstand and takes $250 frm the wallet. Nick and Quinn are each charged with burglary. Are either f them guilty f burglary? Nick: Cannt burglarize his wn huse Quinn: He did nt enter fr the purpse f cmmitting a felny CHAPTER 8: BATTERY, ASSAULT, RAPE, KIDNAPPING, ARSON, AND OTHER CRIMES A. Battery 1. Definitin Unlawful Applicatin f frce T anther persn That causes bdily OR Cnstitutes an tuching 2. Elements Unlawful: Cnsent is a cmplete defense t battery (e.g., bxing match). Applicatin f frce: Need nt be a great deal f frce; the slightest tuch can cnstitute frce in sme cases MBE Criminal Law 2017 Themis Bar Review, LLC 27

28 Battery is a crime, s vluntary intxicatin and mistake f fact are nt available defenses. Applicatin f frce des nt require an actual physical cnnectin between the defendant and the victim (e.g., thrwing a rck that hits smene) B. Assault (Tw Frms) 1. If a defendant has taken a substantial step tward cmpleting a battery but fails, he will be guilty f assault It is a crime because it is an attempt; Specific-intent defenses are available 2. Fear f Harm Nte 9: If there is an actual tuching, this frm f assault rises t the crime f battery. Intentinally placing anther in f imminent bdily harm This frm f assault is a crime. Example 68: Thmas has a crush n Ursula. After getting drunk ne night, Thmas cncludes that Ursula truly lves him. He ges t her rm and kncks, but she wn t pen the dr. Thmas breaks it dwn. Once inside, he tries t kiss Ursula. But she s fast and he s drunk, s she gets away. Thmas falls ver and pushes ver Isaac wh is als in the rm injuring Isaac. Did Thmas cmmit a battery against Ursula fr trying t kiss her?, because he didn't actually kiss r tuch Ursula. Is Thmas guilty f attempted battery (assault)?, if his intxicatin prevented him frm having the required mens rea. Is it a defense t attempted battery that Thmas thught Ursula really wanted t kiss him? As lng as the defendant cannt maintain specific intent, he des nt have the requisite intent. Did Thmas cmmit a battery against Isaac?. He als cmmitted assault by breaking dwn the dr because he put them in fear f imminent bdily harm and his vluntary intxicatin is nt a defense. C. Rape 1. Cmmn-law rape requires: Unlawful Themis Bar Review, LLC MBE Criminal Law